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Self-Execution of Justice in Halachah

Every legal system has inherent limitations.

The law cannot deal explicitly with every case that comes up between litigants. For this reason, it presents guiding principles (ventilbegriffe), which offer counsel and direction for novel situations.

The law also has procedural limitations. It is not always possible or expedient to come to  Beis Din, and take up one’s claim before a panel of judges—which is of course the ideal for any legal system. For this reason, the law includes principles that govern immediate needs that cannot be met by court procedure. For example, it is permitted to use reasonable force to prevent a thief from stealing property. It is permitted to evict a squatter in some circumstances, and so on.

In the present article we will explore the Jewish-Law principle of avid inish dina le-nafshey—”a person executes judgment for himself.” To what degree is it permitted to take the law into one’s own hands? Is it permitted to cause damage in order to avert damage? When can a person take his case to secular courts? We will discuss these questions, and others, below.

Self-Execution of Justice

The Talmud (Bava Kama 27b) notes the case of partners in a pool of water, whose partnership arrangement was that each of them had the right to draw water from the pool on alternate days. One day, one of the partners came to the pool to draw water, only to find that his partner was already there—on the wrong day—drawing water. After his request to leave the water alone was refused, the wronged party hit his partner with the pole of a hoe.

Rav Nachman states that all authorities agree that the man who hit his partner is not liable for any damages caused. Since in this case, leaving the partner alone and taking up the case in Beis Din might cause an irretrievable loss, all opinions concur that it is permitted for him to strike the wayward partner.

Rashi explains that the damage involved refers to not knowing how much water was drawn (and how much can be claimed from the partner), or the fear that the pool would dry up without the injured party having the opportunity to make up his loss.

The Gemara cites a dispute between Rav Nachman and Rabbi Yehudah concerning whether one has a legal right to execute judgment on one’s own even when there is no loss involved other than the bother of going to (a Torah) court. A number of proofs are brought for Rav Nachman’s position, whereby even this is permitted including a case of forcefully entering another’s house to reclaim stolen property, a case of pulling out one’s ox from beneath an attacking animal while damaging the aggressor, and a case of forcefully banishing a freed slave from one’s property for fear of theft.

Although the proofs are deferred, Rishonim write that the halachic ruling follows the opinion of Rav Nachman. This is subsequently ruled by the Rambam (Sanhedrin 2:12) and the Shulchan Aruch (Choshen Mishpat 4:1): “A person has the right to execute judgment on his own, if he has the physical means to do so. If he does that which is legally mandated, he does not need to submit the case to Beis Din, even where no financial loss might be caused by the delay involved in doing so.”

Note that in executing justice, one must be wary of even appearing like a thief. In the words of Ben Bag Bag (ibid.): “Do not enter your fellow’s yard without permission to take that which is yours, lest you appear as a thief. Rather, smash his teeth and tell him: I am taking that which is my own!” The direct approach is best.

Restrictions on Self-Execution of Justice

At the same time, it is not reasonable that a person is permitted, in all circumstances, to take justice into his own hands. This would quickly lead to anarchy. Also, as noted in the introduction, any legal system prefers litigants to take a disputed matter to court, rather than settle it on their own by brute strength.

Rishonim therefore mention a number of basic limitations to the halachah.

The Mordechai (Bava Kama 3:30) writes that taking the law into one’s own hands can be done only where a person sees a specific item of his which was taken by, or is being threatened by, somebody else. When no specific item is involved, but rather a general monetary loss, there is no permission to circumvent going to Beis Din. Mordechai quotes a similar ruling from the Yere’im.

After noting a similar position, Nimmukei Yosef (Bava Kama 12b) adds that a person is only permitted to execute his own judgment when he has unquestionable proof to the correctness of his own position—such as witnesses, or a testified admission of the other party. When Beis Din will undoubtedly reach the same conclusion, one is allowed act. Where the decision of Beis Din is in doubt, to act is forbidden.

According to this position, taking justice into one’s own hands effectively implies becoming an agent of Beis Din, or the “long arm of the law.” Therefore, if the proof one has is not conclusive in Beis Din, it is forbidden to act on one’s own. Furthermore, as noted above, it is only permitted to take back a specific item, and not to collect debts and other financial obligations. These matters require an act of Beis Din.

The Rambam, however, does not make these distinctions, but rather cites the Gemara as a blanket ruling permitting a person to act on his own. Similarly, the Ramban (Sefer Hazechus, Kesubos 14b in pages of the Rif) writes clearly that a person has the right to self-execute justice even for general obligations, and even when Beis Din would not enforce judgment, such as cases of fines that Beis Din today do not enforce (Ramban writes that one can grab what is his due even in the absence of presentable proof; see Raavad, who argues).

Rather than acting as an agent of Beis Din, it is possible that these authorities see a person as possessing the authority of Beis Din itself, thereby giving him a broader scope of enacting justice. This is also suggested by the Rambam’s wording.

The Halachic Ruling

These opinions are cited by the Shulchan Aruch and the Rema. The Shulchan Aruch (Choshen Mishpat 4:1) rules that a person is permitted to self-execute justice, adding that this does not include the right to take a pledge against a loan, for doing so involves a Torah prohibition. Aside from this, the Shulchan Aruch does not limit one’s license to self-execute judgment to a concrete item or to cases in which one has absolute proof acceptable in Beis Din.

The Rema, however, quotes the above-mentioned rulings of the Mordechai and Nimmukei Yosef, who restrict permission for self-execution to cases of a concrete item alone. He also adds that it is not permitted to self-execute judgment by means of non-Jewish authorities. See more on this below.

Concerning taking a pledge against a loan, the Rema adds (quoting from Shut Maharik) that it is permitted to seize (known as tefisa) another’s property as a pledge for a financial debt. This position is contested by Ketzos Hachoshen (4:1, quoting from Maharshal), who writes that it is forbidden to grab property as collateral, yet concedes that when a person has the other party’s possessions, he is permitted to hold on to the property. He adds, citing the Zohar, that one should preferably refrain even from this.

Based on the Rema, the Aruch Hashulchan (Choshen Mishpat 4:1-2) sums up the halachic conclusion: “There are times then a person is permitted to self-execute judgment, for instance when a person sees his item in the hands of somebody else who stole it from him, or who wishes to steal it now…. In these circumstances, there is no requirement to bring the dispute before Beis Din. However, this refers to a concrete item which is clearly his… but if the other party owes him money on account of some past theft, deposit, rental agreement, and so on, he does not have permission to self-execute judgment and to grab money or possessions, but must rather bring the dispute before Beis Din.”

Neutralizing Offensive Property

Another instance of taking action is demonstrated by the following case.

The alarm system of a store went off, for an unknown reason, in the middle of the night. After neighbors were unable to contact the owner of the store, one of the neighbors took matters into his own hands and broke the alarm, allowing the neighbors to sleep but causing the owner no slight distress. The owner of the store proceeded to file a claim against the neighbor for the cost of the alarm. Was breaking the alarm justified, or must the neighbor pay for the damage?[1]

One of the cases mentioned in the above Gemara, an ox attacking another ox, seems to indicate that a person has permission, where necessary, to take the appropriate measures to defend his own property—even at the expense of damaging somebody else’s. Yet, Shut Chavos Yair (165), addressing a case in which a farmer killed chickens who were eating his crop, writes that the farmer is obligated to pay for the damage, basing this on a similar ruling of the Shulchan Aruch (Choshen Mishpat 397:2). This indicates that when the owner does not intentionally cause damage, the principle of self-executing justice does not apply.

In a lecture given on the subject, Rav Moshe Mordechai Farbstein distinguished between cases in which the damage is reasonable under the circumstances, and where the damage is unreasonable. If the damage is reasonable, the act is considered self-defense, and the perpetrator is not liable. Where the damage is unreasonable, however—for instance, damaging a car that blocked another car’s passage for only two minutes—the act is not considered self-defense, and the perpetrator would therefore be liable for the damage.

Rav Farbstein concludes that if the action is reasonable (or proportional), it is permitted to break the alarm system to prevent disturbance. He stresses that this does not depend on whether or not the store owner is to blame for the malfunction of the alarm system.

Using the Non-Jewish Court

Based on the principles outlined above, the Yam Shel Shlomo (Bava Kama 3:6) writes that only under very specific conditions can a person turn to secular courts, based on the principle of self-executing justice. These conditions require a concrete item which is being held by a thief (or the like), and which secular courts will not extract based on evidence that cannot be submitted in Torah courts.

For cases other than concrete items, it is not permitted to take a law suit to secular courts. Even if it means losing the lawsuit, one is obligated to take the case to a Torah court of law. If the Torah court of law deems it appropriate—generally if one of the litigants refuses to cooperate with Beis Din—it will permit recourse to the secular courts.

Rav Shlomo Kluger (Shut HaElef Lecha Shlomo, Choshen Mishpat 3) notes another application of the self-execution principle in this area. He rules that once Beis Din has actually issued a concrete ruling, if the losing litigant refuses to comply the other litigant may take the matter to a secular court. In this case, Rav Shlomo Kluger writes that there is no need for permission from Beis Din, because of the principle of “avid inish dina le-nafshey.”

The common custom is to request permission from Beis Din even for this action.

Turning In Jewish Criminals

Is it permitted to turn in a Jewish criminal to a national law enforcement agency (police, and the like)?

On the one hand, the prohibition of moser, meaning handing a person over to non-Jewish authorities, is recorded by the Talmud as being among the most serious of transgressions, for which a person is liable to lose his portion in the World to Come. The Shulchan Aruch (388:9) rules that the prohibition applies, “even if he is wicked, and a transgressor, and even if he causes others strife.”

On the other hand, there is a clear and urgent need to create a concrete deterrent for would-be criminals, and to punish those who stray, so that they, too, will not return to their criminal activities. In times when the Beis Din lacks means to effectively punish and sanction, the only way to maintain social order is by means of the secular agencies of law enforcement. What is the balance between these two weighty considerations?

Based on the principles outlined above, Shut Iggros Moshe (Orach Chaim, vol. 5, no. 9) implies that it is permitted to hand over a thief to the police when he threatens to steal property. Just as it is permitted to cause the thief physical harm, it is likewise permitted to hand him over to the police. However, after the theft has already taken place (and if there is no threat for the future—see below), he writes that it is forbidden to hand him over to the police, if they will punish him with imprisonment—a form of punishment not sanctioned by the Torah.

Shut Tzitz Eliezer (vol. 19, no. 52) explains further that the prohibition of handing over a criminal to secular authorities does not apply when the criminal presents a threat to potential victims (he refers to issues of child abuse, but the principle applies equally to other threats). This principle is already expressed by the Rema (Choshen Mishpat 388:7), who states that when a person’s property is threatened, it is permitted to inform the authorities of the threat, and allow them to deal with it—even if this will lead to punishments that are not sanctioned by the Torah.

In Kovetz Teshuvos (Vol. 1, no. 188)of Rav Elyashiv zatsal, we find a discussion concerning somebody who was suspected of stealing repeatedly from communal funds. Although the culprit was all-but-known, the community leaders failed to extract an admission from him, and the question was raised of turning him in for investigation by the authorities. Based on a responsum of Shut Panim Me’iros (vol. 2, no. 155), Rav Elyashiv replied that the concern over turning a person in to the authorities is that “should he confess his crime, they might sentence him to death.”

This concern does not apply today, and it is therefore permitted to use the authorities to investigate a suspect criminal (he adds that one must take other considerations into account, and leaves the final decision to local authorities).

A similar idea is expressed by the Aruch Hashulchan (388:7), who writes that the stringency of handing a person over to non-Jewish authorities applies primarily to decadent countries, and not to enlightened countries in which a person receives a fair hearing.

Based on the above, it emerges that the prohibition mentioned by Rav Moshe Feinstein of handing a thief over to the police applies only to somebody who no longer poses a threat to the public. For a person who remains a threat—whether in causing bodily or financial harm—it is certainly permitted to hand him over to the police, and for most thieves this will be the correct course of action.

Such matters must always be decided by a leading authority; it is not for just anybody to take the matter into his hands, and it is always important to consult a competent rabbi before acting.

[1]        This question was discussed by Rabbi Moshe Mordechai Farbestein at the Maaneh Simcha Conference, 27th Tishrei 5770; the transcript was published in Alon HaMishpat 30, which can be found on the www.din.org.il site.

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